Tag: rebuttal evidence

The Debate Goes On… Independent Medical Exams and "Responsive" Expert Evidence


Rule 11-6(3) of the new BC Supreme Court Civil Rules requires expert reports to be served 84 days prior to trial.  Rule 11-6(4) requires “responding” reports to be served at least 42 days prior to trial.  The issue of whether a Defendant is able to force a plaintiff to attend an “independent medical exam” for the purpose of obtaining a responding report is currently being worked out by the BC Supreme Court.  Reasons for judgement were released last week demonstrating this matter remains a live issue.
Earlier this year, Mr. Justice Savage declined a defence motion to compel a Plaintiff to attend a doctor’s examination to obtain a responding report finding that an independent examination of a Plaintiff is not necessarily required since responding reports are to be strictly limited to “a critical analysis of the methodology of the opposing expert”
In a case released last week the Court reached a seemingly opposite result with a finding that an independent medical exam can be compelled to allow a Defendant to obtain a responding report in a personal injury claim.
In last week’s case (Luedecke v. Hillman) the Plaintiff was injured in a BC motor vehicle collision.  He served his expert reports in the timelines required by the Rules of Court.  The Defendant sought an order for an independent medical exam to obtain a responding opinion.  The Plaintiff opposed arguing that a medical examination is not necessary to obtain a truly responding opinion.  Mr. Justice Cullen disagreed and upheld a Master’s order compelling the Plaintiff to see the Defendant’s doctor.  In doing so the Court noted as follows:

[49]        Although the plaintiff submits that Dr. Reebye should be limited in his report to “criticizing the methodology or the research or pointing out facts apparent from the records which the other examiners may have overlooked” based on Justice Savage’s apparent reliance on C.N. Rail, supra, I do not take from Savage J.’s judgment that responsive opinions are invariably limited to “a critical analysis of the methodology of the opposing expert.”

[50]        In C.N. Rail, supra, Henderson J. was dealing with rebuttal evidence in the classic sense described by Southin J.A. in Sterritt v. McLeod, supra, as simply evidence responsive to some point in the oral evidence of the witness called by the defendant.

[51]        What is at issue in the present case is a different form of responsive evidence, recognized in Stainer v. Plaza, supra, as distinct in paragraph 15, where Finch J.A. ( as he then was) noted:

The third condition in the order is directed to the third party calling an independent medical examiner “for rebuttal evidence” I understand from counsel that this refers not to rebuttal evidence as generally understood, but to evidence that is purely responsive to medical evidence which the plaintiff has led as part of her case.  It would not apply to opinion evidence offered by the third party on subject matters not adduced in the medical evidence adduced by the plaintiff. [underlining added]

[52]        I thus conclude that what is referred to in Rule 11-6(4) is not akin to rebuttal evidence such as that called by a plaintiff in response to a defendant’s case, with its consequent limitations.  Nor is it akin to expert evidence that responds generally to the subject matter of the plaintiff’s case.  Rather, it refers to evidence that is “purely responsive” to the medical evidence which the other party has called.

[53]        As such, it has inherent limitations, but not necessarily the same limitations that Henderson J imposed on the true rebuttal evidence he was dealing with in C.N. Rail, supra.

[54]        I agree with the conclusion of Mr. Justice Savage in Wright v. Brauer, supra, to the effect that there is an evidentiary threshold to be met before an order under Rule 7-6(1) should be made in contemplation of an expert’s report under Rule 11-6(4).  That threshold is different from that for ordering an expert’s report under Rule 11-6(3).  To reach the requisite threshold under Rule 11-6(4) the applicant must establish a basis of necessity for the examination to properly respond to the expert witness whose report is served under subrule (3) by the other party.  It is not simply a matter of demonstrating a need to respond to the subject matter of the plaintiff’s case.

[55]        Clearly, that threshold was not met in the case before Savage J.  In the case before me there is an affidavit from Dr. Reebye setting forth a basis for the examination sought, although ultimately what Dr. Reebye may regard as purely responsive may be different from that which the trial judge eventually concludes to be so.  That issue must await another day.  Here I am dealing with a more limited issue, and I am satisfied that on the basis of Dr. Reebye’s affidavit the evidentiary threshold is met and the order of Master Scarth should be upheld.

[56]        I am alive to the concern expressed by the plaintiff’s counsel that Rule 11-6(4) may be seen as a means for defendants to circumvent the more onerous notice provisions of 11-6(3) and routinely seek to obtain reports that more properly should be sought under that latter rule.  I conclude, however, that such a concern can be met as it was with the practice of having opinion evidence without notice under the old Rule 40A.  In that regard, the words of Williamson J. in Kelley v. Kelley (1995), 20 B.C.L.R. (3d) 232 (S.C.) are apt:

I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think if that rule is carefully observed, there should be no difficulties.

As with judicial precedents developed under the former rules, I expect there will be some seemingly inconsistent judgements dealing with the issue of independent medical exams under the current rules and eventually the BC Court of Appeal will likely weigh in on the issue to bring some clarity to the law.

The New BC Supreme Court Rules and "Responsive" Expert Reports


Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, interpreting and applying Rule 11-6(4) for the first time.  This rule deals with “responsive” expert opinion evidence.
Under the old Rules of Court parties could call responsive expert evidence without notice provided the evidence was truly responsive.  The new rules of court changed this and require responsive expert reports to be served 42 days ahead of the scheduled trial.
In today’s case (Wright v. Bower) the Plaintiff was involved in a motor vehicle collision and alleged chronic back pain as a result of the crash.  Her lawyer served expert reports addressing these injuries in compliance with the time lines set out in the rules of court.  The Defendant brought a motion to compel the Plaintiff to attend an examination with an orthopaedic surgeon in order to obtain a ‘responsive’ report.  The Plaintiff opposed arguing that an examination was not necessary for the Defendant to obtain a truly responsive report.  Mr. Justice Savage agreed with the Plaintiff and dismissed the motion.  In doing so the Court provide the following useful reasons setting the parameters for responsive expert evidence:

[12]         Rule 11-6(4) was enacted to fill a lacuna in the Rules.  Under the former Rules, Rule 40A permitted parties to call expert evidence in reply without notice at trial.  In order for such evidence to be admitted, however, it had to be truly responsive to the expert evidence of a witness called by the opposing party.

[13]         In Stainer, supra, the British Columbia Court of Appeal considered Rule 40A(3) and the scope of the Court’s discretion to admit responsive evidence.  At paragraphs 16-18, Finch J.A. said:

[16]      …The admission of expert evidence is now governed by Rule 40A(3)

An expert may give oral opinion evidence of a written statement if the opinion has been delivered to every party of record at least sixty days before the expert testifies.

[17]      That rule applies equally to all parties.  In the normal course, a defendant will wish to protect his right to adduce expert evidence at trial by giving the notice required by that rule.  But the court retains a discretion to admit responsive evidence of which notice has not been given:  Pedersen v. Degelder (1985), 62 B.C.L.R. 253 (B.C.S.C.); Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 (S.C.); and Kelly v. Kelly (1995), 20 B.C.L.R. (3d) 232 (S.C.).  In the latter case Mr. Justice Williamson said:

I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think that if that rule is carefully observed, there should be no difficulties.

[18]      That is, in my respectful view, a correct statement of the proper practice. …

[15]         Amongst other things, the parties argued before me regarding whether the new Rules have substantively changed the practice which existed under Rule 40A.  They agreed that this is an important practice point, and a case of first impression.

[16]         Rule 40A gave the Court discretion to admit responsive evidence of which notice had not been given.  Rule 11-6(4) now provides that notice must be given of responsive expert evidence (although I note that the Court retains discretion to admit expert evidence of which sufficient notice has not been given).

[17]         I would expect that, in the ordinary course, an examination would be ordered under Rule 7-6(1) where a person’s medical condition was in issue in an action, provided it was requested in a timely way.

[18]         However, at this point in time in the action, the defendants are limited to what Mr. Justice Williamson referred to in Kelly, supra, as “truly responsive rebuttal evidence”.  The application must be considered in that light; the question on this application is not one of notice, but whether the Examination should be ordered to enable the defendant to file responsive evidence.  The authorizing Rule, 7-6(1) uses the term “may”.

[19]         In Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7, Sanders J., as she then was, noted that “true response evidence, does not permit fresh opinion evidence to masquerade as answer to the other side’s reports”.

[20]         In C.N. Railway v. H.M.T.Q. in Right of Canada, 2002 BCSC 1669, Henderson J. considered the admissability of “reply reports” holding that only the portions of the reports that provided a critical analysis of the methodology of the opposing expert were admissible as responsive evidence.  The portions of the reports describing the authors’ own opinions on the matters in issue were not admitted.

[21]         In this case, the defendants do not explain why an examination is required in these circumstances, other than a statement by a legal assistant that counsel says such is “necessary to properly defend this action and to respond to the reports of Dr. Weckworth and Dr. O’Connor”.  Master McCallum in White v. Gait, 2003 BCSC 2023 declined to order an examination where it had not been shown why such was required to produce a responsive report.

[22]         In my opinion, the bare assertion reported to a legal assistant in this case is insufficient to support an order under Rule 7-6(1) that the plaintiff attend the Examination, when the defendants are limited to providing response reports under Rule 11-6(4).  In the circumstances, the application is dismissed.  The plaintiff is entitled to costs of the application.

BC Injury Claims and the Rule Against "Case Splitting"


When an ICBC or other injury claim goes to trial the Plaintiff needs to prove their case.   In the most basic terms this means that in a tort claim fault needs to be established along with the nature and extent of the accident related injuries and the losses that these have caused.  The Plaintiff normally does this in what’s called the Plaintiff’s ‘case in chief‘.  If the Plaintiff fails to call evidence on any of these points the case can be dismissed on a ‘no-evidence‘ motion.
Once the Plaintiff finishes calling his/her case the defence has the opportunity to call evidence to contradict the Plaintiff’s case or in support of theirs.  A Plaintiff can then call ‘rebuttal evidence‘ and this is something that often occurs in injury litigation when the Defence calls medical experts with conflicting opinions about the cause of the Plaintiff’s injuries.
There are limits on rebuttal evidence, however, and one such limit is that the evidence called in rebuttal must be truly responsive to the other sides case as opposed to addressing the points that needed to be proven in the ‘case in chief‘.  If a court concludes that rebuttal evidence is not truly responsive a court can keep it from going in.  Reasons for judgement were released today discussing this point of civil procedure.
In today’s case (Bransford v. Yilmazcan) the Plaintiff was injured in a motor vehicle collision.  In her case in chief she called evidence discussing her accident related injuries which apparently included Thoracic Outlet Syndrome and Headaches.  The Defendants then called their expert (Dr. Makin) who addressed the cause and prognosis of the Plaintiff’s injuries.
The Plaintiff then wished to call Drs. Prout and Caillier to give rebuttal evidence.   The Defendants objected arguing that the evidence was not truly responsive and the Plaintiff was attempting to ‘split her case‘.  Madam Justice Griffin agreed that some of the evidence was indeed not true rebuttal evidence and did not allow portions of the proposed evidence in.  Specifically she found that the proposed evidence diagnosing accident related Thoracic Outlet Syndrome and Headaches could have been called in the Plaintiff’s case in chief.  Madam Justice Griffin held as follows:

[6] First, Dr. Makin was asked a number of questions in his direct evidence regarding definitions of thoracic outlet syndrome, including the question “What are two types of thoracic outlet syndrome that involve nerves?”  His evidence was that one, the type that involves nerves, is true neurogenic thoracic outlet syndrome, and that is the only type that involves the nerves.  He said a different type, disputed thoracic outlet syndrome, is a type diagnosed by vascular surgeons, and that neurologists do not agree with that classification.

[7] The implication of his evidence, including other questions he was asked in direct about how he conducted his tests, was that neurologists as a group are of the view that provocative testing reveals no clinically helpful information in diagnosing thoracic outlet syndrome and that they are opposed to vascular surgeons reaching this diagnosis.

[8] In my view this is a proper basis for rebuttal evidence on this narrow point; i.e., is a neurologist of the opinion that there can be a diagnosis of thoracic outlet syndrome in the absence of positive signs and a nerve conduction study?  And, is a neurologist of the opinion that provocative testing can be helpful in diagnosing this?

[9] The plaintiff cannot have been in a position to respond to the suggestion that neurologists do not hold that opinion as a group until the defence witness was heard on that point.  Indeed, arguably this point could not have been anticipated as it was not specifically identified in Dr. Makin’s report.

[10] I therefore conclude that it would be appropriate for the plaintiff to call rebuttal evidence of Dr. Prout to respond to this point, since Dr. Prout is a neurologist.

[11] However, Dr. Prout goes beyond this in his report and does his own evaluation and diagnosis of Hanna Bransford for thoracic outlet syndrome.  I am of the view that this goes further than proper rebuttal and runs the risk of splitting the plaintiff’s case, and so it is not appropriate.

[12] Second, Dr. Makin performed what were referred to as inching studies as part of his nerve conduction studies and reached a different diagnosis than the plaintiff’s physicians and experts, namely he diagnosed a problem with Ms. Bransford’s ulnar nerve.  I am of the view this is an appropriate matter for rebuttal evidence, namely an analysis of Dr. Makin’s nerve conduction studies and any comment disputing his findings and any contrary inching studies regarding the ulnar nerve.  This evidence would not be splitting the plaintiff’s case because the plaintiff does not assert that her diagnosis has anything to do with her ulnar nerve.

[13] I also note that the oral evidence of Dr. Makin reporting on these studies is not significantly narrowed from the point he makes in his written report and the defendants had agreed earlier that this was the proper subject of the rebuttal reports of Dr. Caillier and Dr. Prout.

[14] Further, the plaintiff could not properly have anticipated this evidence in its entirety until it was called from Dr. Makin.

[15] As for Dr. Makin’s evidence on headaches, I am of the view this is not the proper subject of rebuttal evidence, at least insofar as revealed in Dr. Prout’s report.  Headaches have always been part of Ms. Bransford’s symptoms and we have heard one plaintiff’s witness, Dr. O’Connor, describe them as cervicogenic.  Dr. Makin disagrees and describes them as migraine.  Dr. Prout does not point out any flaw in Dr. Makin’s science from a neurologist’s perspective, but really just gives an opposite opinion, an opinion that could have been given in the plaintiff’s main case.  The plaintiff was in a position to respond to the labelling of Ms. Bransford’s headaches as cervicogenic or migraine prior to the close of its case as it had notice of Dr. Makin’s description of the headache as migraine.

BC Supreme Court Addresses Scope of Expert Witness Cross Examination

Reasons for judgement were released today addressing the permissible scope of Cross Examination of an expert witness in a BC Injury Claim.
In today’s case (MacEachern v. Rennie) the Defendants called a physician to give expert opinion evidence.  This physician happened to be a treating doctor of the Plaintiff’s prior to her injuries.  While testifying the doctor was taken through his clinical records by defence counsel on an entry by entry basis.  The doctor was asked what happened on each of those clinic visits and in canvassing this the doctor gave evidence about the prognosis and treatment of Hepatitis C (which is an area the doctor apparently was not called to address).
The Plaintiff then wished to cross examine the doctor about treatments and the prognosis for Hepatitis C.  The Defence lawyer objected to this on the basis that such a cross examination would “call for new opinion that are not admissible since the Plaintiff has not served the defendants with notice of those opinion“.
Mr. Justice Ehrcke swiftly rejected the Defendant’s objections noting that they could not restrict the cross examination on a topic which they chose to ask the doctor about in direct.  Specifically Mr. Justice Ehrcke noted as follows:

[11]         With respect to the first point, the CN Defendants argue that the notice which they served on the plaintiff in connection with Dr. Glynn-Morris contains only treatment opinions and does not touch on the area of the plaintiff’s Hepatitis C. This argument misses the mark. The plaintiff is entitled to respond to all the opinion evidence led by the CN Defendants, not just that which was contained in the written statement of Dr. Glynn-Morris’ opinion. It was counsel for the CN Defendants who chose in direct-examination to ask Dr. Glynn-Morris about testing of the plaintiff for Hepatitis C. It was in direct-examination that Dr. Glynn-Morris opined that in 30 percent of people, Hepatitis C cures itself and disappears, and that he ordered a test to see if that is what had happened in Ms. MacEachern’s case. Having opened up that area in examination-in-chief, the CN Defendants cannot now restrict the plaintiff’s cross-examination about it simply on the ground that it was not covered in the written statement that they had delivered to the plaintiff.

[12]         In any event, the proposed evidence is also truly responsive as a rebuttal to the opinion of another expert witness called by the CN defendants, Dr. Baker, whose report entered at Tab 1 of Exhibit 61 states:

I note Ms. MacEachern had already contracted hepatitis C which with her ongoing ingestion of multiple drugs would likely have progressed with liver damage and possible cirrhosis and eventual liver failure.

[13] Nevertheless, the CN Defendants argue that even if the proposed line of questioning did not require notice pursuant to the provisions of Rule 40A, notice was still required because of the case management order made in respect of this trial on February 6, 2009, which provided, among other things, that the plaintiff’s reply or rebuttal reports were to be delivered by January 29, 2009. The CN Defendants point out that Dr. Baker’s report was delivered to the plaintiff on December 1, 2008. They submit therefore that any opinion evidence in reply to Dr. Baker’s report should have been delivered to them by January 29, 2009.

[14]         The short answer to this argument is that the deadlines set out in the case management order relate to expert witnesses that each party proposed to call as witnesses in their own case. The order does not, by its terms, require a party to give notice of the questions it proposes to ask in cross-examination of another party’s witnesses, even if those questions in cross-examination have the effect of eliciting an expert rebuttal or reply opinion.

[15] The case of Canadian National Railway Company v. Canada, 2002 BCSC 1669, 8 B.C.L.R. (4th) 323 cited by the CN Defendants is distinguishable, because that case did not deal with the effect of a case management order on questions asked of an opposing witness in cross-examination.

[16] To summarize:  the questions that the plaintiff proposes to ask in cross-examination of Dr. Glynn-Morris are proper, and to the extent that they elicit expert opinions, those opinions are proper reply or rebuttal. Such reply or rebuttal opinions elicited in cross-examination are not subject to the notice requirements of Rule 40A, or of the case management orders that were made in this case.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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